03/04/2011 14:15 FAX 2024935142 FAA ^ nu^ 

'^'"^ ^ DMS 0001/009 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter ofi SUN QUEST EXECITTIVE AIR CHARTER. INC 

FAAOrderNo.201M 

Docket No, CP08WP0004 

-- • "Orl j 

FDMS No. FAA-2008-023 8 ^ 0 ?|§ 2 

Served: January 5,2011 ' ^ ^^-' 

RESPONSE TO ORDER REQUESTING FURTHER BRIEFING 

Pursuant to the Administrator's Order served Jajnuary 5, 2011, 

respondeni submits this memorandum dealing with the meaning of "other 

commercial flying" as used in 14CFR Section 135.267. 

It has been previously emphasized in the earlier meniorajida that the 

instant proceedmg is not against Captain. Mark Smith for any alleged violation. 

The instant case deals solely with an alleged violation on the pan of Sun Quest 

Executive Air Charter, Inc. It charges the company with failure to track noncompany flying, namely flights by Captain Smith with the Los Angeles Police 

Department. 

' Materials filed in the FAA Hearing Docket (except for materials filed in scbcurity cases) are also 

available for viewing at the following Jntamet address: -Hnvw.ree^tlationy, gnu 
i 03/04/2011 14:15 FAX 2024935142 FAA . n«^ 

?i • ^'^'^ * DMS 1002/00 9 

As detailed hereafter, the only rational meaning of "other commercial 

flying*' 35 used in Pan 135 is flying for the same company. The Agency has 

seized on dicta in unrelated cases, out of context as be applied to the instant case, 

to argue that the non-commercial flying means any other non-military flyingLogic says that ihc identical common sense reasoning has to apply to all public 

flying. There is nothing in the regulations or rulings which differentiate between 

various types of public flying. To the contrary, the statute creating the FAA 

exempts fi:om the FAA jurisdiction overpubUc flying from the regulatory scheme. 

There appears to be no case squarely dealing with the problem, but 

reason, as well as common sense, makes it clear that the Agency is attempting by 

administrative fiat to change the defmitions set forth in the Aviation Act itself as 

well as its own prior rulings. As detailed hereafter, all previous rulings have 

foreclosed this attempt for the "camel to put its nose in the tent". The Agency 

agrees that flying for the,military could not, by definition, constitute flying for the 
03/04/2011 14:15 FAX 2024935142 FAA * QMS 1003/009 

entity which is charged with tracking time. How is military flying different from 

other public flying? 

There is at least one case which, without analysis, seems to say thai. 

the FAA may have jurisdiction over some public flying. Analyses of the case, 

however, show that the alleged exception is not an exception at all. Control of the 

airspace is entirely different from controlling pilots and air operators. Just because 

the FAA has jurisdiction over most airspace, it does not mean that it has 

jurisdiction on everything and anything dealing with aviation. The statute is 

crystal clear as to what is and is not within the domain of the FAA. 

Analysis of all the cases dealing with the subject find for the FAA 

when and only when the operator "who is charged with the duly to track time has 

some opportunity to actually track the time. Analysis of the cases demonstrates 

this. 
03/04/2011 14:15 FAX 2024935142 FAA . niio 

^ ^ QMS 0004/00 9 

In Richard MartineUi (sic) MacxindolU there is a clear implication 

that the context of the case was regarding an instructor at a flight school which 

also was a 135 certificate holder. 

In Ryan Koepp, a similar situation was presented. Tlie question was 

whether giving instruction, which clearly could not have becan in a public airplane, 

could constitute "other commercial flying time". The Agency doss not contend, 

and the facts would belie it, that Smith's flying for the L.A.P.D, involved any kind 

of instruction, whether for compensation or otherwise. 

The letter to Jeff J. Jacober, likewise is unpersuasivc. It deals with 

flight time that obviously had to have been assigned by the 13 S operator itself 

Captain Smith's flight time for the L.A.P.D, was not assigned to him by Sun 

Quest; it was controlled solely by the L.A.P.D. 

In the letter to the N.E. - FSDO, the issutj in context dealt with a 

company holding more than one type of certificate, namely, a flight school and a 

135 operator. That kind of company had the ability to and should track the time of 
03/04/2011 14:15 FAX 2024935142 FAA * QMS 12005/009 

it's assigned pilots. There, in the language of the opinion, iht same pilot 

represented while the company was only ".. -wearitrg a different hat at the time of 

the assignment..." 

What is important is that the earlier opinions of the Agency have 

made it clear that the time which must be tracked is the time assigned or within the 

ken of the 135 operator. The same safety policies which deal with "duty time" are 

applicable to the obligations dealing with 'Vest tune". As to this, there is 

substantial precedent and the cases all support respondent's position. 

Referencing quotations from the Agency's interpretations, the first is 

a letter to the manager of the Lincoln Flight Standards District Office from Dona.ld 

P. Byrne, Acting Assistant Chief Counsel, Regulations and Enforcement Division. 

It states: 

"It is not a violation of FAR Part 135 for a pilot 

to fly during a required rest period provided that tlie flying is 

not assigned bv the certificate holder [emphasis added]; 
03/04/2011 14:15 FAX 2024935142 FAA ^ DH^ r>..n 

* o"s ig.ooG/oog 

however, it is a violation of FAR §91.9 if the certificate 

holder allows, or the crewmember performs, any flying when 

the pilot's lack of rest may endanger others-" 

As applied in this case, the same interpretations advise further on ihc 

same issue. It states in part: 

"As there is no regulatory mandate which 

requires a crewmember to use the rest period for rest, the pilot 

may perform tlie flights you have described. The rule 

regarding "other commercial flying" is that it may not be 

conducted during required rest periods, if it is assigned by the 

certificate holder [emphasis added]. Specifically, the 

prohibition against "other commercial flying" during the 

required rest period apphes to situations where the certificate 

holder requires the flving [emphasis added]." 
03/04/2011 14:15 FAX 2024935142 PAA 

, ^ °^ ^ 0007/009 

Within the same set of opinions, the same thinking appears later. 

The opinions state: 

''With the exception of other duties assigned bv 

the certificate holder [emphasis added] and "other 

commercial flying" assigned bv the certificate holder^ 

[emphasis added] the FARs do not regulate what an 

individual does with his time during a required rest period. It 

is the intent of their regulation to provide periods of rest, 

however, it is impractical to monitor each pilot's daily 

activities. Therefore, although we would encourage a pilot to 

rest during this period, there is no regulatory prohibition 

against such labor..." 

The issue in this case is not a new problem. There is a memorandum 

that appeared on the AV Web quoting from John Allen, the FAA official who 

oversees flight standards. The Agency is now considering a new Advisory 
03/04/2011 14:1G FAX 2024935142 FAA + DMS 

1008/00 9 

Circular dealing with flight-by-flight basis, if public aircraft status applies. When 

and if such an Advisory Circular is issued, apparently it will deal with the 

defmitions of "public aircraft". 

The instant matter has been pending for about 6 years.^ It had its 

genesis by a Letter of Investigation dated October 17, 2005. If there was any real 

doubt that flying engaged in by Captain Smith should have been tracked by the 

respondent, one would think that by now there would have been a case, opinion, 

statute, or regulation to resolve the issue one way or the other. Proceeding by tiae 

instant action, is simply administrative fiat and a means of non-compliance with 

the Administrative Procedure Act and the safeguards available to the flying public 

that is contained therein. 

Dated: March 3, 2011 Respectfiilly submitted, 

ARTHUR WASSERMAN 

Attorney for Respondent 

It became dormant after the original Regional Counsel could not come up with any legal precedent to 

justify it, then became active when,the new Regional Counsel resurrected it. 

8 
03/04/2011 14:1G FAX 2024935142 PAA 

* ^^^ 1009/00 9 

Certificate of Service 

I, Christina Merrick, hereby certify that on this date I both faxed and mailed by 

Certified Mail the original of the attached document (Response to Order 

Requesting Further Briefing) in the Matter of Sun Quest Executive Air Charter, 

Inc., Docket No CP08WP0004 and 2 copies, addressed to: 

Federal Aviation Administration 

600 In dependence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC'430 

Wilbur Wright Building, Suite 2W1000 

Facsimile: (202)493-5142 

And, I hereby certify that a copy of that document was sent by facsimile and 

certified United States Mail, postage-prepaid, to: 

Peter J. Lynch 

Assistant Chief Counsel for Enforcement, AGC-3 00 

C/0 Joseph A. Conte 

Counsel for complainant 

Enforcement Division, AGC-300 

800 Independence Avenue, SW 

Washington, DC 20591 

Facsimile: (202)267-5106 

Dated: March 3,2011